iHEALTHSPOT INTERACTIVE SERVICES TERMS AND CONDITIONS

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The following terms and conditions are incorporated by reference in the patient portal licensing agreement (“agreement”) entered into between iHealthSpot Interactive and customer. Use of the iHealthSpot Interactive patient portal (“portal”) by customer and the providing of the patient portal service (“service”) by iHealthSpot Interactive to customer are governed by these terms and conditions in addition to those contained in the agreement. In the event that any of the following terms and conditions conflict with those contained in the agreement, the terms and conditions set forth herein shall govern.

Definitions

  1. “Provider” shall mean a licensed provider of medical or health services in customer’s practice, including but not limited to a physician, physician assistant, nurse practitioner, physical therapist, or psychotherapist.
  2. “Authorized user” shall mean providers, for whom customer has paid the applicable license fee, and staff members authorized by customer to access and use the service.
  3. “Authorized patient” shall mean a person seeking health care, or legal guardian of such person, and who, prior to using the service, has been determined by customer to have a patient-physician relationship with customer, and has a user ID and password authorized by customer.
  4. “Confidential information” shall mean any information that is confidential, proprietary, or trade secret information of iHealthSpot Interactive or customer, including but not limited to customer lists, patient lists, pricing information, or information regarding the disclosing party’s business planning or operations, or any other information the use of or disclosure of which is prohibited or restricted by reason of any contract, court order, law or other obligation, including protected health information under the Standards for Privacy of Individually Identifiable Health Information, the Privacy Rule, and the Security Standards, the Security Rule, published by the U.S. Department of Health and Human Services, at 45 C.F.R. parts 160 through 164 under the Health Insurance Portability and Accountability Act of 1996. Confidential information shall not include such information that is available in the public domain or otherwise lawfully made public.

Service

  1. iHealthSpot Interactive shall use commercially reasonable efforts to provide the service in accordance with the terms and conditions of the agreement.
  2. iHealthSpot Interactive shall set up the portal and shall train customer’s providers and staff in the use of the service. Additional training may be provided from time to time at customer’s request, which may result in additional charges based on iHealthSpot Interactive’s then current hourly rates.
  3. iHealthSpot Interactive shall provide support to authorized users via a user guide, by telephone during normal business hours, and by email to support@ihealthspot.com.
  4. Customer’s portal uses SSL encryption for security. SSL encryption is provided by iHealthSpot Interactive’s Wildcard Secure Encryption Certificate. Customer may request its own SSL certificate, whereupon additional setup and maintenance fees shall apply.
  5. Service will have at least 99.4% uptime, as measured monthly, excluding maintenance. In the event that service is available less than 99.4% of the time in the month, customer shall receive a pro-rata credit for lost time in that month. Customer understands and agrees that temporary interruptions, including periodic maintenance may occur as normal events, and that iHealthSpot Interactive has no control over third party networks and upstream service providers, or interruption of network transmissions.

Licenses and Proprietary Rights

  1. Grant of license to customer in Section 3 of the agreement is for access to and use of portal by customer and its authorized users and authorized patients. The portal is not for use by any third-party practice. Monthly license fee is determined by the number of licenses issued and indicated in Addendum A of the agreement. The number of licenses issued by iHealthSpot Interactive, or the per-license fee charged by iHealthSpot Interactive is based on the number of providers advised to iHealthSpot Interactive by customer. Customer shall notify iHealthSpot Interactive in the event there is a change to its number of providers.
  2. iHealthSpot Interactive shall retain all right, title, and interest, including copyright and other proprietary or intellectual property rights, in the service and all legally protectable elements, derivative works, modifications, and enhancements thereto.
  3. The agreement does not convey to customer any interest, title, or license in a user ID, email address, or URL within the iHealthSpot.com domain or the domain of an iHealthSpot Interactive affiliate, or any iHealthSpot Interactive domain name or IP address used by customer in connection with the service.
  4. In the event that the service contains third-party owned applications, rights of ownership to such applications remain the property of their respective owners.
  5. Customer will not, and will not allow any third party to decompile, disassemble, reverse engineer, or attempt to reconstruct or identify any source code or underlying processes or techniques of the portal or service.
  6. Customer shall not sublicense, transfer, or assign the service or any of the rights or licenses granted under this agreement.
  7. Customer shall retain all right, title, and interest in customer’s own content, trademarks, service marks, and medical records.
  8. Customer agrees to allow iHealthSpot Interactive to display and transmit on and via the internet customer trademarks and service marks in the form and manner specified by customer, solely in connection with the service provided hereunder.

Use of Service

  1. Customer shall not use the service for storage, possession, or transmission of any information, the possession or transmission of which violates any local, state or federal law.
  2. Customer understands that the service is not designed for medical emergencies. Customer agrees to inform its authorized patients that the service is not designed for emergency use.
  3. Customer agrees that only providers shall assess, diagnose, and recommend treatment for its patients and acknowledges and agrees that iHealthSpot Interactive is not engaged in the practice of medicine through the provisions of the service herein. Customer shall take all actions necessary to ensure that its use of the service is in compliance with all regulations, including applicable laws, rules and professional standards, and shall take reasonable precautions to ensure that the service is utilized by its authorized users and authorized patients in a manner consistent with such regulations. IHEALTHSPOT SHALL HAVE NO OBLIGATION, RESPONSIBILITY, OR LIABILITY FOR ANY PROVIDER’S PROVISION OF PROFESSIONAL SERVICES.
  4. Customer shall be solely responsible for the security of the customer’s own operating environment.
  5. Customer understands that the service is not intended as the primary storage of communications between customer and authorized patient. Customer understands that all forms of communication through the portal, including but not limited to secure forms and secure messaging, shall be downloaded and saved in customer’s patient record system.

Medical Library

  1. Medical library is the registered copyright of iHealthSpot Interactive and iHealthSpot Interactive retains all right, title, and interest in the medical library. Customer only has a license to display and use the medical library and may not copy or use medical library separately from the website or portal except as a printed handout for customer’s patients.
  2. Medical library may not be shared, resold, sublicensed, or included in any product designed for resale.
  3. Customer understands and agrees that the medical library is to be used only to educate consumers on various health conditions. Medical library is not to be used by customer or anyone else in customer’s service to provide or instruct on medical diagnosis or treatment.
  4. Medical library may not be complete or current. It does not cover all diseases, physical conditions, ailments or treatments. The medical library should not be relied upon to determine diagnosis or course of treatment and should not be used in place of an individual consultation, examination, visit or call with a physician or other qualified health care provider. By providing the medical library, neither iHealthSpot Interactive nor those who write and review the medical library are directly or indirectly practicing medicine or dispensing medical services through customer’s website.
  5. Customer may use the medical library only during the term of the agreement. Upon termination of the agreement, customer's license shall cease and customer shall discontinue all use of the medical library.

Warranties and Limitation of Liability

  1. iHealthSpot Interactive will make reasonable efforts to provide continuous, uninterrupted, expedient and error-free service to customer. iHealthSpot Interactive warrants that it will perform its services with professional thoroughness and competence. NO OTHER WARRANTY OR REPRESENTATION, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, COMPATIBILITY, OR SECURITY, is created by this agreement.
  2. iHealthSpot Interactive shall under no circumstances be liable to customer or any other party for any special, incidental, consequential, or punitive damages, including loss of profits or income, or cost of replacement service. iHealthSpot Interactive’s sole liability, and customer’s sole remedy shall be limited to (i) having iHealthSpot Interactive bear the reasonable cost of repairing any part of the service that does not meet the above warranty, or (ii) an amount equal to the amounts paid by customer for service during the period which service is affected for damages caused by extraordinary and unreasonable interruptions of service, or mistakes, omissions, delays, errors, defects, deletion of files, or loss of or damage to data in the provision of the service. CUSTOMER HEREBY ACKNOWLEDGES THAT THIS PROVISION WILL APPLY WHETHER OR NOT IHEALTHSPOT IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
  3. Through customer’s use of the service, customer may engage in transactions with other parties. Customer acknowledges that all transactions resulting from use of the service are agreed to solely between customer and the other parties. IHEALTHSPOT MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH, OR IN CONNECTION WITH THE SERVICE, AND CUSTOMER UNDERSTANDS AND AGREES THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT CUSTOMER’S OWN RISK. Customer is solely responsible for completion of transactions and collecting payments, including taxes, and for security and storage of any transaction records.

Indemnity

  1. iHealthSpot Interactive shall indemnify, defend, and hold customer harmless from all third-party claims, losses, liens, expenses, suits, and reasonable attorneys’ fees, (“liabilities”), to the extent caused by (i) active negligence or willful misconduct of iHealthSpot Interactive or (ii) infringement or misappropriation by the service as a result of any materials created by iHealthSpot Interactive hereunder of any patent, copyright, trademark, trade secret, or other proprietary right(s) held by any third party. Customer shall have the right to participate, at its own expense, in iHealthSpot Interactive’s defense of any claim affecting iHealthSpot Interactive’s obligation to indemnify customer. iHealthSpot Interactive shall have no obligation to indemnify customer for liabilities resulting from customer’s use of service, or infringement or misappropriation of any patent, copyright, trademark, trade secret, or other proprietary right(s) held by any third party as a result of customer’s use of the service.
  2. Customer agrees to indemnify, defend, and hold iHealthSpot Interactive and its employees, contractors, principals, contributors, and affiliates harmless from all third-party claims, losses, liens, expenses, suits, and reasonable attorneys' fees ("liabilities") of any kind, including for injuries to or death of any person that may in any way arise out of or result from or in connection with (i) customer’s use of the service or (ii) use of the service by customer that constitutes a breach of the agreement, or (iii) customer’s failure to comply with regulations, including applicable laws, rules, and professional standards.

Confidential Information

  1. Except as expressly permitted in this Section 8, each party shall secure and protect the confidential information of the other party (including, without limitation, the terms of the agreement) in a manner consistent with the steps taken to protect its own confidential information.
  2. Either party may disclose confidential information of the other party where the disclosure is required by applicable law or regulation or by an order of a court or other governmental body having jurisdiction after giving reasonable notice to the other party with sufficient time for such party to seek a protective order.
  3. Confidential information shall not be deemed confidential information if such information becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this agreement by the receiving party, or if such information was known or becomes known (independently of disclosure by the disclosing party) to the receiving party.

Severability

If any provision of the agreement or the application thereof to any person or circumstance shall at any time or to any extent be determined to be invalid or unenforceable, the remaining provisions of the agreement shall not be affected and shall be deemed valid and fully enforceable to the extent permitted by law, and the agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.

Waiver

The waiver by either party of strict performance or breach of any provision of the agreement shall not be considered to be a waiver of any such right to strict performance of any provision or of any other or subsequent breach of any provision the agreement.

Survival

All provisions of the agreement relating to proprietary rights, confidentiality and nondisclosure, indemnification, and limitation of liability shall survive the completion of service or termination of the agreement.

Force Majeure

Neither iHealthSpot Interactive nor customer shall be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond their reasonable control, including without limitation: fire, hurricane, earthquake, flood, lightning, explosion, power surge or failure, civil commotion, act of God, war, governmental restriction, or labor unrest.

Notices

Notices in connection with this agreement shall be in writing and served on customer at the address set forth in Addendum A of the agreement, and on iHealthSpot Interactive at the address provided in its website, www.ihealthspot.com.

Entire Agreement

The agreement and any exhibits and schedules attached hereto, constitutes the entire agreement between iHealthSpot Interactive and customer in respect of the service and there are no warranties, representations, and/or agreements among the parties in conjunction with the service except as set forth in the agreement.